Sealey and Sealey v. Pfizer, Inc.

The claimant was represented by Nathan Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P. O. Drawer 929, Groton, CT 06340.

The respondents were represented by Robert McGann, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 16, 1997 Finding and Dismissal of the Commissioner acting for the Second District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 16, 1997 Finding and Dismissal of the Commissioner acting for the Second District. She argues on appeal that the trial commissioner erred by dismissing her claim that the decedent’s lung cancer and subsequent death were due to workplace asbestos exposure. We affirm the trial commissioner’s decision.

The trial commissioner found that the decedent worked for the respondent Pfizer, Inc. from 1957 until his retirement in 1986. He died of asbestos-related cancer in 1993. The claimant contends that the decedent’s condition was caused by his exposure to asbestos while working for Pfizer. The trier reviewed all of the items submitted into evidence, including medical reports and depositions. There was no live testimony. He found that the decedent was exposed to significant amounts of asbestos while working for a shipyard in 1941 and while working for the military during the 1940’s. The trier also found that the decedent was exposed to insignificant amounts of asbestos while working for Pfizer. The commissioner specifically accepted the testimony of Dr. Godar, and rejected the testimony of Dr. Cherniack and one of the decedent’s co-workers (who testified regarding the amount of the decedent’s asbestos exposure). He thus ruled that the claimant did not meet her burden of proof, and dismissed her claim. The claimant has appealed that decision to this board.

It is well-settled that, in a workers’ compensation case, the “power and duty of determining the facts rests on the commissioner, the trier of facts.” Dichello v. Holgrath Corp., 49 Conn. App. 339, 353 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). “It is the province of the commissioner to accept the evidence which impresses him as being most credible and more weighty.” Dichello, supra (citations omitted); Webb, supra. This includes the authority to choose which, if any, medical reports the trier wishes to cite. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The factual findings can be altered on review only if they are without evidentiary support, or if they omit undisputed facts. Roy v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 179, 181, 3131 CRB 1-95-7 (May 12, 1997); Webb, supra, 71. Similarly, the legal conclusions drawn by the trier must stand “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (citations omitted).

Applying that standard of review to the instant case, we have no choice but to affirm the trier’s decision. He explicitly chose to rely on Dr. Godar’s opinion over that of Dr. Cherniack, expressly doubted the testimony of one of the decedent’s co-workers (Walter Beauchamp), and impliedly disputed the decedent’s assertion that he was exposed to significant amounts of asbestos at Pfizer. Findings, ¶¶ 8-11. A review of Dr. Godar’s deposition shows that he repeatedly emphasized his belief that the decedent’s exposure at Pfizer was not a significant cause of the development of his mesothelioma. See January 24, 1996 Deposition. We cannot say on appeal that the trier misconstrued his testimony.

Even though the appellant argues that the pre-1957 history of asbestos exposure presumed by Dr. Godar was inaccurate, we cannot say that the history provided by the decedent in his testimony had to be credited by the trial commissioner. It was the claimant’s burden to prove that the decedent’s mesothelioma arose in significant part from his exposure to asbestos at Pfizer. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Smith v. UTC/Pratt & Whitney, 3134 CRB-3-95-6 (April 4, 1997). The trial commissioner was not satisfied from the evidence that this was accomplished. This is not the sort of determination that this board can reverse on appeal. See, e.g., Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998). By doing so, we would be guilty of reassessing the credibility of the decedent’s testimony and that of the two physicians who were deposed in this case.